PUBLIC INTEREST LITIGATION GRANT APPLICATION

PUBLIC INTEREST LITIGATION GRANT APPLICATION SECTION ONE Date of Application Applicant Organization (Full Legal Name) Doing Business As Previous Name, if changed IRS Letter Date Tax Exempt ID # (EIN) Name of Executive Director Name of Fiscal Sponsor (if applicable) Proposal Contact Name Title Phone Fax E-mail Street Address City State/Zip Code Organization Website Mailing Address (if different than street address) City State/Zip Code ORGANIZATION INFORMATION CONTACT INFORMATION Updated: 01/2012 Page 1 of 4

PUBLIC INTEREST LITIGATION GRANT APPLICATION ORGANIZATION FINANCIAL INFORMATION Organization s Budgeted Expenses for Current Year (give fiscal year end mm/dd/yy) $ Organization s Major Funding Sources by Percentage ORGANIZATION S AFFILIATION PIL Case Name Total Current Fiscal Year Budget for PIL Cases REQUEST DATA Amount of this Request $ Grant Duration (e.g., 6 months, one-year, two-year, etc.) Anticipated Case Expense Start Date $ State Served by Case Total number of people related to or benefit from defendants in PIL grant request Detail in Section 4 Brief demographic description of population served by this/these cases GRANT CYCLE MARCH-SEPTEMBER Application Deadline: February 15 or August 15 SIGNATURE Signature of Board President FTCF ONLY Application Number - 20 - Updated: 01/2012 Page 2 of 4

PUBLIC INTEREST LITIGATION GRANT APPLICATION In general, the following narratives, which include Sections Two through Five, should not exceed five pages in total (please confirm any page limits with each foundation to which you are submitting the application). Responses should be typed, single-spaced, and single-sided and use a 12-point type. At the funder s discretion, you may answer questions individually or group them into one narrative for these sections: Section Two to Section Six. SECTION TWO ORGANIZATIONAL BACKGROUND 1) Brief summary of organization s history and statement of organization s mission 2) Brief description of current PIL activities 3) Evidence of organization s overall effectiveness based on achievement of specific organizational goals 4) Description of population and geographic region served by this organization SECTION THREE STATEMENT OF NEED 1) What is the problem, challenge or need that is unaddressed or unmet? Or what is the community benefit that this case will impart? 2) What is the research, statistic(s) or evidence that shows this need or benefit exists? SECTION FOUR IMPORTANT: Review the funder s program guidelines and restrictions before responding to this section. 1) Description of Public Interest Litigation, including: a) Summary description of Case to be funded under this grant b) Brief description of goals and objectives for case represented in application c) Timetable for implementation and duration of case d) Evidence of use of case history (For example, is this/these case(s) based on legal action that has been shown to be effective in other settings? If the grant is used to set a precedent, please list assumptions on why this new approach will succeed. 2) Brief description of how grant funds will be used? 3) If your organization has received support for this specific case detailed within this grant application from this Foundation in prior years, please attach documentation that details how the past support was spent. Please label the page as such: Attachment Page 3, Section Four. Updated: 01/2012 Page 3 of 4

PUBLIC INTEREST LITIGATION GRANT APPLICATION SECTION FIVE CASE FUNDING PLANS 1) List of other funders to whom this current proposal has been and will be submitted. For each funder, indicate amount requested and status of request (e.g. to be submitted, pending, funded, or declined ). If funded, specify amount of grant and date received. 2) Other anticipated funding for this current proposal including: a) Earned revenue b) In-kind support c) Special events d) Fundraisers, etc. e) Describe plans and specific sources for future/long-term funding. SECTION SIX REQUIRED FINANCIAL ATTACHMENTS 1) Statement of Revenue/Support and Expense IRS 990 for your organization s most recently completed fiscal/calendar year. 2) Total Organizational Budget for Current Fiscal Year including a column showing the organization s year-to-date status. 3) Project Request Budget for the entire case(s) described in this grant request. SECTION SEVEN REQUIRED NON-FINANCIAL ATTACHMENTS 1) IRS letter of determination 501(c)(3) or (4) 2) Names and professional affiliations of board members Updated: 01/2012 Page 4 of 4

Area: Disbursements Subject: Cash Disbursements - Grants Effective Date: Revision Date: INTERNAL CONTROLS CONTROL OBJECTIVE: Cash disbursements made for grants are for donor authorized charitable organizations and purposes. 501(c)(3) or 501(c)(4) non-profits or other qualified entities organized or persons. CONTROL POINTS: 1. The Farm-to-Consumer Foundation ( Foundation ) has a grant submission process in place for prospective recipients of grants to be awarded. 2. The Organization utilizes standard submission forms for Public Interest Litigation (PIL) Grants for prospective applicants and standard submission forms for Compassionate Relief (CR) Grants for prospective applicants. 3. The Foundation has a formal process for reviewing and approving grant applications that have been submitted. 4. The Board of Directors reviews all grants awarded on a yearly basis. 5. The Foundation has a final report process for grant recipients to report back to the Foundation the impact and use of the grant. Approved by: Title: Date: Updated: 01/2012 Page 1 of 3

ACCOUNTING POLICIES CASH DISBURSEMENTS - GRANTS Effective Date: Chairman of the Grant Committee shall be a Farm-to-Consumer Foundation ( Foundation ) Board Member. The Committee will consist of a minimum of two (2), maximum of four (4) additional members, who may or may not be Board Members and the President. The President is an ex officio member of all committees. POLICY To provide general guidelines for disbursing and monitoring of awarded grants. CATEGORIES OF GRANTS A. Public Interest Litigation (PIL) B. Organization(s) for: Mutual Mission Support Public Meetings Educational Material Development C. Individual(s) for: Scholarships for: Conference/Meeting Attendance Educational Opportunities Educational Material Development D. Compassionate Relief (CR) PROCEDURE 1. The GAC will ensure that all potential grant recipients complete the approved grant application and submit it to the Foundation in a timely fashion with all requested information. To facilitate this, CR grant applications will be standardized and will be available in electronic format and available on the Foundations website. Unsolicited or organizations applying who have not been funded in the past by the Foundation for Public Interest Litigation (PIL) grants will be accepted. 2. The Foundation will establish a grant cycle for potential grant recipients to submit grant applications. Applications will be reviewed in March and September and must be received by the 15 th of each proceeding. a. Chairman--Receive completed Grant Application Form and any additional documents. b. Make copies (or receive # of copies) and send to Committee Members and President. c. Allow two weeks for committee member review. d. Call a discussion meeting(s) that will result in a written recommendation for approval or disapproval. Updated: 01/2012 Page 2 of 3

e. Chair will send written recommendation to the President. f. The President will put on agenda for next FTCF Board meeting with attachments: Completed Application and the GACRecommendation. g. Board meeting: Board to discuss GAC Chair available (on the call) to answer questions. h. Board will vote acceptance or rejection of GAC Recommendation or portion of request, and be so reflected in the official Board Minutes. i. President (or Administrative assistant) will notify the Grantee of the Board s decision in writing. 3. The Foundation will establish criteria by which grant recipients will be eligible for additional awards. 4. The Foundation will establish internal criteria by which to review and evaluate grant requests. The criteria should include, but not necessarily limited to, the level of need, in regards to PIL grants the GAC s determination of the accuracy of the declaration of the cases detailed within a PIL grant request demonstrated by the submitting organization, and the quality of the grant application. 5. To ensure proper use of the funds, the Foundation will establish a monitoring program for grant recipients. The monitoring program will require periodic reports from the grant recipients on the use of the funds or the accomplishments that have been achieved with the funds. Funds approved by the GAC must be sent to the approved grant application organization the within the year it is approved. 6. For grant recipients where monitoring appears to be impractical or is a grant specific to cover costs already incurred, the Organization will utilize a cost reimbursement program for the grants awarded. With this program, the grantee will be notified of the grant awarded, but funds will be sent only upon demonstration of costs incurred Grantees will submit documentation that is sufficient to prove that the costs have been incurred, paid for by the grantee and that they relate to the purpose indicated in the grant application. 7. At the conclusion of the grantee's project if other than a request filed specifically for a reimbursement grant, the Foundation will require a final report from the grant recipient. The final report will be in a standardized form and will be submitted within 60 days following the completion of each individual case were grant support was awarded, before additional grant requests are considered all required procedures have to have been followed. Updated: 01/2012 Page 3 of 3

PUBLIC INTEREST LITIGATION GRANT FINAL REPORT GENERAL INFORMATION Name of Case(s) Date of Award Letter Grant Number (if applicable) Grantee Name Grantee Address Telephone Fax Email of Contact Person Federal ID Number Name of Executive Director Name of Contact Person Purpose of Grant Grant Period / to / Report Period / to / Grant Amount TYPE OF GRANT (check one) Public Interest Litigation Other: Date: Signature of Report Writer Typed or Printed Name and Title Date: Signature of Executive Director Updated: 01/2012 Page 1 of 2

GRANT REPORT NARRATIVE Please limit your narrative to 4 pages total. Some questions may not apply to your grant. 1) Results List the original goals and objectives of the grant, and tell how they were met during this reporting period. Include the impact it made on your organization, community, and/or the population served. In what ways did the actual case(s) vary from your initial purpose? Describe how/why. Describe any unanticipated outcomes, benefits or challenges encountered with this/these cases. If applicable, attach selected material relating to the funded project: press or news items, brochures, letters of support, photographs, etc. 2) Future Plans What is your plan for this/these case contents in the future? Briefly describe rationale for ongoing funding, expansion, replication or termination. 3) Financials Using the original budget included with your proposal, provide an itemized budget of actual expenses and income for the project for this period. Provide narrative on any variances of 10% or greater from the original case(s) budget. Who else has funded this project and at what level? Updated: 01/2012 Page 2 of 2

October 1 st 2012 Mr. Pete Kennedy Esq. President Farm-to-Consumer Legal Defense Fund Dear Pete, The Farm-to-Consumer Foundation (FTCF) Board of Directors is pleased to inform you that we have reviewed the recommendations of the Grant Disbursement Committee regarding your grant application(s) of the Fall 2012 grant cycle and have approved support and detailed any conditions for the Public Interest Litigation cases in the amounts listed below. Application # 912012-1 Amount approved $15,000.00 Application # 912012-3 Amount approved $15,000.00 Application # 912022-4 Amount approved $5,000.00 Application # 912012-5 Amount approved $20,000.00 Application # 912012-6 Amount approved $200.00 On behalf of the FTCF Board we look forward to the results of your activities. Sincerely, Tim Wightman President

Draft Grant Award Mailing Honorable Treasurer, I hereby approve payment to the Farm-to-Consumer Legal Defense Fund the amount of $27,500.00 approved by majority vote at the recommendation of the Interim Grant Committee at the Farm-to Consumer Foundation Board meeting on April 23rd 2012. This grant award in its entirety is to be written out of the Restricted Account(labeled litigation account) at your earliest convenience. Given this is our first Grant award under our new grant policy I hereby offer these instructions to complete the process. All time spent by the Treasurer in completing this process is to be logged under Grant Activities File contents for the Foundation Grant Award records * A copy of grant award letter * A copy of the check for $27,500.00 out of the restricted account with the word copy written over the copy of the award check * A copy of this email approval of payment * a copy of 32012-1 / 2 / 3 /4 approved grant applications (found in the board meeting packet of April 23rd 2012) * when available a copy of the approved minutes of the Board meeting of April 23rd 2012^ * a copy of the USPS electronic notification of delivery to the Legal Defense Fund * all contents to be contained in a manila envelope * Manila envelope mailed to the Foundation Secretary filed under the file heading 2012 Grant Awards ^ in essence this file will remain open until the minutes of the meeting have been approved, and then completed, closed and filed. Contents of manila envelope mailed to the Legal Defense Fund * A copy of grant award letter * The check for $27,500.00 out of the restricted account within a Foundation envelope or attached to the grant award letter via paper clip * a copy of 32012-1 / 2 / 3 /4 / 5 / 6 grant applications (found in the board meeting packet of April 23rd 2012) * The envelope should be mailed to the home address of the Legal Defense Fund Administrator Taaron G. Meikle 11748 Indian Ridge Rd. Reston, VA 20191 via confirmation of delivery.

DATE: July 9, 2012 TO: Tim Wightman, President Farm-to-Consumer Foundation MEMORANDUM FROM: SUBJECT: Leslie S. Johnson IRS definition of public interest litigation for the purposes of regulating grantmaking activity. QUESTION PRESENTED For the purposes of the Internal Revenue Service s (IRS) regulation on the grant-making activity of 501(c)(3) charities, what constitutes public interest litigation? BRIEF ANSWER For the purposes of the IRS regulation on the grant-making activity of 501(c)(3) charities, public interest litigation is litigation that represents a broad public interest, rather than a private one, and is of a nature that would not typically be taken on by private firms. ANALYSIS The IRS provides only broad guidance for what constitutes litigation in the public interest. Under Rev. Rul. 73-74, 1975-1 C.B. 152, public interest litigation is defined as legal representation for the resolution of issues of broad public importance where such representation is not ordinarily provided by private law firms because the cases are not economically feasible. In 1992, the IRS elaborated more specifically on what types of cases constitute public interest litigation:

The engagement of the organization in litigation can reasonably be said to be in representation of a broad public interest rather than a private interest. Litigation will be considered to be in representation of a broad public interest if it is designed to present a position on behalf of the public at large on matters of public interest. Typical of such litigation may be class actions in which the resolution of the dispute is in the public interest; suits for injunction against action by government or private interests broadly affecting the public; similar representation before administrative boards and agencies; test suits where the private interest is small; and the like. Rev. Proc. 92-59, 1992-2 C.B. 411 (emphasis added). The factor that is largely determinative when evaluating purported public interest litigation, is the lack of available representation from the private sector. Rev. Rul. 75-74, 1975-1 C.B. 152. According to the IRS, public interest litigation does not normally extend to direct representation of litigants in actions between private persons where the financial interests at stake would warrant representation from private legal sources. Rev. Proc. 92-59, 1992-2 C.B. 411. Nonetheless, if those situations would also affect or impact a broad public interest, the organization may serve as a friend of the court. Rev. Proc. 92-59, 1992-2 C.B. 411. Public Interest as Defined in Other Contexts The IRS gives more specific examples for what constitutes public interest in other contexts. This may serve as a guideline for what typically constitutes public interest, and could be argued by analogy. For example, in the scientific research context, the IRS considers research carried on in the public interest if it is: Scientific research carried on for the purpose of aiding in the scientific education of college or university students; (2) scientific research carried on for the purpose of obtaining scientific information, which is published in a treatise, thesis, trade 2

publication, or in any other form that is available to the interested public; (3) scientific research carried on for the purpose of discovering a cure for a disease; or (4) scientific research carried on for the purpose of aiding a community or geographical area by attracting new industry to the community or area or by encouraging the development of, or retention of, an industry in the community or area. 26 C.F.R. 1.501(c)(3) 6(5)(iii) (emphasis added). Beyond general definitions of public interest, similar to the one above, there is very little information available to gain a more specific understanding of the types of cases that are classified as public interest litigation. Instead, the focus of both the courts and legal writers gravitates straight to fee arrangements in public interest litigation, finding no need for a square definition of what litigation in the public interest is. Guidance from Grant-Making Regulations Still, there is some additional guidance about grant-making activities of 501(c)(3) organizations, and therefore information on grant-making for public interest litigation. A 501(c)(3) has latitude in giving grants, but it is limited in that it must ensure that any grant made is used to further its exempt purpose. What Every Grantmaker Should Know & Legal FAQs, Grantmaking, http://www.mcf.org/publictrust/faq_grant. Accordingly, in order for a 501(c)(3) to make a grant to a 501(c)(4) organization for public interest litigation, the grant must be one that is used to further the 501(c)(3) organization s exempt purpose. For example, the Farm-to-Consumer Foundation could make a grant to the Farm-to-Consumer Legal Defense Fund. To do so, it would simply have to ensure that the grant money goes to further Farm-to-Consumer s exempt purpose: supporting farmers engaged in 3

sustainable farm stewardship and promoting consumer access to raw milk and local food. If the grant money goes toward furthering this purpose, the Farm-to-Consumer Foundation may give the grant. This is true whether the money went toward public interest litigation, or money granted for another purpose; the limitation is only that the money be used to further the exempt purpose. For that reason, it is important that the 501(c)(3) enter into a grant restriction agreement with the recipient agreeing to use the funds in furtherance of the exempt purpose. While this does not answer the question of what public interest litigation is, it does shed light on the broader question of what types of cases the Farm-to-Consumer Foundation may help finance through its grants. CONCLUSION Public interest litigation, for the purposes of the IRS regulations on the grant-making activity of 501(c)(3) charities, is litigation that represents a broad public interest, rather than a private one, and is of a nature that would not typically be taken on by private firms. However, for a 501(c)(3) organization s determination of when grant-making is appropriate, the organization is limited only to financing activities which will further its exempt purpose, regardless of those activities classification as public interest litigation. IRS CIRCULAR 230 DISCLOSURE In compliance with requirements imposed by the Internal Revenue Service, we inform you that any Federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding any penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. 4

DATE: July 9, 2012 TO: Tim Wightman, President Farm-to-Consumer Foundation MEMORANDUM FROM: SUBJECT: Leslie S. Johnson 501(c)(3) Gifting to a 501(c)(4) Organization where some proceeds may support lobbying efforts and operational costs QUESTION PRESENTED May a 501(c)(3) organization give a 501(c)(4) organization educational materials as gifts, if the 501(c)(4) organization sells a portion of the materials and uses the proceeds to support lobbying efforts and operational costs? BRIEF ANSWER It is most likely acceptable to the Internal Revenue Service (IRS) for a 501(c)(3) organization to give to a 501(c)(4) organization educational materials as gifts, even if the 501(c)(4) organization sells a portion of the materials and uses the proceeds to support lobbying efforts and operational costs. A 501(c)(3) can support or otherwise participate in lobbying activities, including all activities attempting to influence legislation, as long as that support and activity does not constitute a substantial part of the organization, as defined by either the substantial part test, or the expenditure test. ANALYSIS The Internal Revenue Service allows 501(c)(3) organizations to engage in limited lobbying activities. This limit is imposed as an effort to ensure that the 501(c)(3) is organized

and operated exclusively for its exempt purpose. 26 CFR 1.501(c)(3)-1(a). Organized and operated exclusively is not treated with its ordinary meaning; instead it allows for minor and insubstantial non-exempt activities as part of the organization. Seasongood v. Commissioner, 227 F.2d 907, 910 (6th Cir. 1955). The requirement that the exempt purpose be exclusively the work of the organization is remedial and should be liberally construed. Seasongood, 227 F.2d at 910. The IRS only stipulates that a 501(c)(3) s lobbying involvement must not constitute a substantial part of the organization. 26 CFR 1.501(c)(3)-(b)(v)(3). If a substantial part of the 501(3)(c) is devoted to lobbying efforts, the organization risks losing tax-exempt status eventually. (See Lobbying, http://www.irs.gov/charities/article/0,,id=163392,00.html). It is important to note that the IRS distinguishes lobbying activities from individual political campaign activities; individual political activities for 501(c)(3)s are strictly prohibited. The Restriction of Political Campaign Intervention by Section 501(c)(3) Tax-Exempt Organizations, http://www.irs.gov/charities/article/0,,id=163392,00.html. The IRS measures an organization s lobbying activities in one of two ways: the 501(h) expenditure test, or the substantial part test. Lobbying, http://www.irs.gov/charities/article/0,,id=163392,00.html. An organization must specifically elect to be evaluated using the 501(h) expenditure test, and can do so at any time during the tax year in which it is to be effective. Measuring Lobbying Activity: Expenditure Test, http://www.irs.gov/charities/article/0,,id=163394,00.html. If the organization does not make this election, it will be evaluated using the substantial part test. Measuring Lobbying: Substantial Part Test, http://www.irs.gov/charities/article/0,,id=163393,00.html. 2

The 501(h) Expenditure Test A 501(c)(3) organization can elect to have its lobbying activities measured using the 501(h) expenditure test. This is known as a 501(h) election and is made using Form 5768, Election/Revocation of Election by an Eligible Section 501(c)(3) Organization to Make Expenditures to Influence Legislation. (See attachment labeled Form 5768). The election is effective indefinitely unless it is revoked by the organization. 1 Under the expenditure test, the extent of an organization s lobbying activity will only jeopardize its tax-exempt status if its lobbying expenditures routinely exceed a specified amount. Id. This amount is determined by a schedule that changes based on the organization s total exempt expenditures. Id. Still, regardless of the organization s total expenditures, its lobbying expenditures may not exceed $1,000,000. Id. The complete schedule can be found on the IRS website, and is reproduced below. If the amount of exempt purpose expenditures is: Lobbying nontaxable amount is: $500,000 20% of the exempt purpose expenditures >$500,00 but $1,000,000 $100,000 plus 15% of the excess of exempt purpose expenditures over $500,000 > $1,000,000 but $1,500,000 $175,000 plus 10% of the excess of exempt purpose expenditures over $1,000,000 1 Revocation of the election is effective beginning with the year following the year in which the revocation is filed. Measuring Lobbying Activity: Expenditure Test, http://www.irs.gov/charities/article/0,,id=163394,00.html (last visited July 3, 2012). 3

If the amount of exempt purpose expenditures is: Lobbying nontaxable amount is: >$1,500,000 $225,000 plus 5% of the exempt purpose expenditures over $1,500,000 An organization exceeding the amount specified for its lobbying expenditures in a particular year will not automatically lose its exempt status. Instead, the organization is simply required to pay an excise tax equal to 25% of the amount in excess. An organization loses its exempt status under the expenditure test, only when it fails to stay within the specified limit routinely over a four-year period. When this happens, all of the organization s income for that four year period is subject to tax. Furthermore, it is important to note that if a 501(c)(3) loses its exempt status because of excessive lobbying, it may not at any time thereafter be treated as a 501(c)(4) organization. Judith E. Kindell and John Francis Reilly, P. LOBBYING ISSUES, 282 (1997), http://www.irs.gov/pub/irs-tege/eotopicp97.pdf. Accordingly, a 501(c)(3) organization can give a 501(c)(4) organization gifts that are later sold to pay lobbying expenses under the expenditure test. The 501(c)(3) must first officially make the 501(h) election. Then it must determine its yearly exempt purpose expenditures to establish its yearly lobbying expense limit. Then, the 501(c)(3) will not be subject to discipline, as long as the total value of the gifts given 4

to the 501(c)(4) organization do not exceed the 501(c)(3) s yearly lobbying expense limit when coupled with any other lobbying expenditures that the 501(c)(3) incurs. Monetary expenditures a 501(c)(3) devotes to lobbying are of prime importance under the expenditure test. As such, a 501(c)(3) electing to have its lobbying expenses measured in this way would need to be vigilant in maintaining accurate records. The 501(c)(3) could mandate, as a condition to the 501(c)(4) receiving the gifts, that the 501(c)(4) keep track of the proceeds from the materials that are used for lobbying expenses and report that value to the donating organization. This would help keep both organizations in compliance, and would aid in nullifying any suspicions about excessive lobbying expenditures. The Substantial Part Test If a 501(c)(3) organization does not make the 501(h) election, its lobbying activities will be evaluated using the substantial part test. Measuring Lobbying: Substantial Part Test, http://www.irs.gov/charities/article/0,,id=163393,00.html (last visited July 3, 2012). This test examines all the pertinent facts and circumstances of the case to determine if the organization s lobbying activities are substantial. The conclusion that lobbying activities are substantial is a factual one that is resolved by comparing an organization s purely charitable activities and expenditures, to those activities and expenditures that aim to influence legislation. Haswell v. United States, 500 F.2d 1133 (Ct. Cl. 1974). It is not as straightforward as comparing percentages; for example, although a tax-exempt promoter of alternative Christian music concerts conducted less than 50% of its activities for non-exempt purposes, it still faced a finding that its non-exempt involvement was substantial, and it lost its 501(c)(3) status. Private 5

Letter Ruling 200832021, 2008 PLR LEXIS 1234. The test is admittedly vague. Benefits of Filing the 501(h) Election, http://www.councilofnonprofits.org/nonprofit-advocacy/501hbenefits. Under the substantial part test, a 501(c)(3) may give a 501(c)(4) organization gifts that are later sold to pay lobbying expenses. The 501(c)(3) must do its best to keep the involvement at an insubstantial level. Because donating gifts likely takes very little time, one could argue that it constitutes an insubstantial part of an organization s activities. However, if the monetary value of the items is high, a court may determine that the donations still constitute a substantial part of the organization. Accordingly, under the substantial part test, mandating that the 501(c)(4) keep accurate records of the gifts proceeds used for lobbying is also important for tax purposes. (See attached Schedule C) This helps prevent the 501(c)(3) from engaging in activity that could be deemed substantial lobbying. Compliance Guide for 501(c)(3) Public Charities, 23 http://www.irs.gov/pub/irs-pdf/p4221pc.pdf. While numeric values alone are not determinative, they can be persuasive in a court s determination. Judith E. Kindell and John Francis Reilly, P. LOBBYING ISSUES, 282 (1997), http://www.irs.gov/pub/irs-tege/eotopicp97.pdf. CONCLUSION A 501(c)(3) can support or otherwise participate in lobbying activities, including all activities attempting to influence legislation, as long as that support and activity does not constitute a substantial part of the organization, as defined by either the substantial part test, or the expenditure test. Therefore, a 501(c)(3) organization may give a 501(c)(4) organization 6

educational materials as gifts, even if the 501(c)(4) organization sells a portion of the materials, and uses the proceeds to support lobbying efforts and operational costs, as long as doing so does not constitute a substantial part of the organization. IRS CIRCULAR 230 DISCLOSURE In compliance with requirements imposed by the Internal Revenue Service, we inform you that any Federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding any penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. 7